The Honorable Beth A. Allen, Multnomah County Circuit Court Judge
In the 2013 legislative session, the requirements for a legal change of sex changed. Prior to that modification, only those persons “whose sex has been changed by a surgical procedure” were able to receive a judgment that changed their sex, and thereby obtain a birth certificate changing their gender marker. The new governing statute is as follows:
A court * * * may order a legal change of sex and enter a judgment indicating the change of sex of a person if the court determines that the individual has undergone surgical, hormonal or other treatment appropriate for that individual for the purpose of gender transition and that sexual reassignment has been completed. (ORS 33.460).
The big change is that surgery is no longer necessary for a petitioner to obtain a legal sex change judgment. This amendment was viewed as a huge success for transgender individuals because many do not want or cannot afford sex reassignment surgery in order to transition. Indeed, surgery is contraindicated for some individuals. Instead, what may be appropriate for an individual petitioner is hormone treatment. It may be that neither surgery nor hormone treatment is appropriate but that some “other treatment” is. It may mean psychiatric therapy, or it may be ordinary “talk” therapy, which can be provided by a non-doctor. Appropriate treatment could be simply living as a person of the sex opposite of that assigned at birth for a period of time. The key, it seems, is that what is appropriate must be determined in consideration of the individual’s unique circumstances.
In Multnomah County, a petitioner may use pre-approved forms for all pleadings in an identity change. The packet contains a declaration setting forth that the specific requirements of the statute have been met. If the petitioner has signed the declaration, and no one offers evidence to controvert the declaration, and there are no concerns that the petitioner did not have capacity to execute the declaration, the petition will be granted. Essentially, sex change petitions are handled in the same manner name changes, which also generally are granted on only a declaration. Some judges do the identity docket in open court. Others prefer to review all the petitions in chambers while the petitioners wait in the courtroom. And, speaking of name changes, Multnomah County has forms for that common situation where both gender and a name change is sought. The form may be modified for those jurisdictions that do not have a blended form.
In other jurisdictions, judges have been requesting a doctor’s note rather than or in addition to the declaration of the petitioner. Although I do not necessarily agree with that procedure, I would recommend that if further documentation is required and if a doctor has not been the transition care provider, the petitioner offer evidence to demonstrate that the person providing the transition care has the expertise to provide treatment to persons undergoing sex reassignment, in addition to the letter setting out that the petitioner has undergone appropriate gender reassignment treatment. As for the statement of the transition being “complete,” how that is handled may differ from one judge to another, so check with the court clerk in advance to see what is expected as the judge may require that a specific category of third party provide that.
Some final notes. These days, young people whose gender identity does not match that assigned at birth are more comfortable with sharing their recognition of this reality at an earlier age, and/or are being taken more seriously when this news is shared. Thus, a gender change may be sought by a minor. In that case, the process for appointing a guardian is the same as for a minor seeking a name change.
And, in light of people’s changing perceptions of the meaning of gender identity, already petitioners are looking to the courts to change a gender marker from either male or female to “other” or “neutral” or some other non-binary marker. How that will be resolved by a judge is likely to be determined on a case-by-case basis until there is some guidance from our appellate courts.
And, finally, in some cases, the docket containing the petitioner’s current name and gender may be posted on the courtroom door. Because the identity docket tends to be done as a “cattle call,” chances are good that others who are waiting for the docket will see the incongruence of the name of the docket and the appearance of the petitioner seeking an identity change. In the courtroom, the judge or the clerk may call out the current name or type of identity change sought. This may cause grave discomfort for the petitioner, so it would be wise to know in advance how the docket is handled. A prepared client is a more satisfied client.